State v. McClour

311 Or.App. 473

492 P.3d 139

STATE of Oregon, Plaintiff-Respondent,

v.Justin Casey MCCLOUR, Defendant-Appellant.

A171776 (Control), A171777

Court of Appeals of Oregon.

Submitted April 6, 2021.

May 19, 2021

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Laura A. Frikert, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Leigh A. Salmon, Assistant Attorney General, filed the brief for respondent.

Before DeVore, Presiding Judge, and Lagesen, Presiding Judge, and DeHoog, Judge.

DeVORE, P.J.

This is a consolidated appeal from two criminal judgments. In Case No. 19CR32373, defendant was found guilty after a jury trial of four counts of first-degree forgery, ORS 165.013 (Counts 1 to 4), and one count of third-degree theft, ORS 164.043 (Count 5). The trial court merged Count 3 with Count 2. On Count 2, the court sentenced defendant as a repeat property offender under ORS 137.717, relying on Counts 1 and 4 as predicate offenses. In Case No. 19CR38036, defendant waived jury and the court found him guilty of a single count—third-degree theft, ORS 164.043. He appeals, raising seven assignments of error. We reject defendant's third and fourth assignments of error without discussion. For reasons that will become apparent, we consider the remaining assignments out of sequence.

In his second assignment, defendant contends that the trial court erred in denying his motion for judgment of acquittal (MJOA) for third-degree theft in Case No. 19CR38036. The state concedes that the evidence is insufficient to permit a reasonable inference that the forged $100 bills defendant was alleged to have stolen had "some nonzero market value," and, therefore, the trial court erred in denying defendant's MJOA. We agree and accept the state's concession. See State v. Waterhouse, 359 Or. 351, 361-62, 373 P.3d 131 (2016) (to survive an MJOA, there must be evidence from which the factfinder "could reasonably infer that the [stolen item] possessed ‘some value,’ the minimum needed to define it as ‘property’ " for purposes of third-degree theft). Accordingly, we reverse defendant's conviction in Case No. 19CR38036.

In his fifth and sixth assignments of error, defendant contends that the trial court erred by instructing the jury that it could return a nonunanimous verdict and by accepting the jury's nonunanimous verdicts on Counts 4 and 5 in Case No. 19CR32373. The jury's verdict was unanimous on Counts 1 to 3. On Count 4, a class C felony, the jury returned a verdict of 10-2, and on Count 5, a Class C misdemeanor, a verdict of 11-1. In Ramos v. Louisiana , ––– U.S. ––––, 140 S. Ct. 1390, 1394-97, 206 L. Ed. 2d 583 (2020), the United States Supreme Court held that the Sixth Amendment requires a unanimous verdict for a conviction in the case of a "serious offense." Thus, the parties readily agree—as do we—that defendant's conviction on Count 4 must be reversed and remanded. Further, we recently concluded, in State v. Heine , 310 Or. App. 14, 21, 484 P.3d 391 (2021), that "due process requires jury unanimity to convict a criminal defendant when the defendant is tried by a jury, regardless of the nature of the offense for which the defendant is on trial." That is, although the federal constitution allows the state to choose not to provide a defendant with a jury when trying a petty offense, where the state opts to do so, due process requires a unanimous verdict for conviction. Id. at 18, 484 P.3d 391. Accordingly, we also reverse and remand defendant's conviction on Count 5. Defendant's contention that the counts for which the jury returned a unanimous verdict must be reversed is foreclosed by State v. Flores Ramos , 367 Or. 292, 319-20, 478 P.3d 515 (2020) (holding that nonunanimous jury instruction is not structural error that requires reversal in every case and, where the verdict was unanimous, the instructional error was harmless beyond a reasonable doubt).

Our disposition on those assignments of error essentially resolves defendant's first assignment of error as well. There, he asserts that the trial court erred in overruling his objection to the prosecutor's statement to the jury during closing argument that "if you come in and you vote, and 10 of you agree that the...